STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

In order to have a chance at getting a favorable outcome when defending a DUI with an allegedly innocent client, a lawyer should always consider the venue. The venue is where the case will be heard. Kentucky has 120 counties and more than 120 venues (some Kentucky counties contain two venues) plus Federal venues.

Why is venue important? Because in a few venues the judge handling the case or a jury may allow personal bias to influence their decisions. It has been my experience that the judges and juries are sometimes influenced by DUI news worthy events (no matter how remote in time), church values, how a defendant presents themselves, morals, and more.

For example, in one case I handled a few years ago, I stated to my client that the county treats DUI's harshly and that it would be difficult to prove a person's innocence in that venue. I explained that in 1988 a drunk driver going the wrong way on Interstate 71 in Carrolton Kentucky struck a church bus which resulted in a fire causing the deaths of 27 young people from this county. The client, maintaining his innocence, still decided to proceed.

Some venues are biased against alleged DUI offenders based on community values. In yet another case, while eating at a McDonald's restraurant, I discovered a hidden bias in that small southern Kentucky city. While waiting for my meal, I struck up a conversation with a friendly retired deputy sherif and learned that this county primarily consisted of two large families who were biased against anyone charged with a DUI. He explained that since my client was not a member of either family he would be considered an outsider. The cashier joined in our conversation and realized that she was related to the retired deputy sherif along with the prosecutor and the deputy sherif who arrested the defendant. Discussions with local defense attorneys and officers not involved in my client's case supported this community bias.

In both examples, at the suppression hearings, I elicited testimony favorable for my clients from the arresting police officers and which should have resulted in suppression of certain DUI evidence. Suppressing certain evidence supporting an element of a DUI typically causes the prosecutor to reassess whether they could get a conviction for a DUI if the matter went to trial. Without certain DUI evidence the prosecutor may decide to dismiss the DUI. Yet both judges ruled against my clients contrary to the testimonial evidence from the officer. One judge stated that if the defendant did not like his decision then he could raise the matter on appeal.

So what can an allgedly innocent DUI Defendant do where it appears the judge has exhibited bias against the defendant? Well, prior to trial, a Defendant can enter an Alford guilty plea with no right to appeal, a conditional guilty plea in order to file an appeal where the defendant argues the legal merits of his case to a higher court, or take the matter to trial and appeal the legal merits of their case if the jury convicts the defendant. In Kentucky, a defendant claiming their innocence can enter an Alford plea which is a guilty criminal plea where the defendant admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty beyond a reasonable doubt. If the defendant decides to take the matter to trial, then the defense attorney will try to flush out juror biases to eliminate biased jurors prior to trial during the jury selection process.

Few people charged with DUI realize that they have statutory rights under Kentucky's implied consent laws, KRS 189A.103 and KRS 189A.105, which can protect them from inappropriate police procedure when the police are attempting to obtain evidence of their impairment.

The arresting police officer must comply with this statute or find himself violating the accused person's statutory rights. According to KRS 189A.105:

At the time a breath, blood, or urine test is requested, the person shall be informed:

1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver's license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and

2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.15 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.15; and

3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.

KRS 189A.103 states in part that the breath tests, "shall have been performed . . . only after a peace officer has had the person under personal observationat the location of the testfor a minimum of twenty (20) minutes."

Additionally, the police officer must also provide the accused person with the opportunity to contact an attorney. KRS 189A.105 further states:

During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right.

After the accused person has complied with the police officers requests, then KRS 189A.105 further states:

Immediately following the administration of the final test requested by the officer, the person shall again be informed of his right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested. He shall then be asked "Do you want such a test?" The officer shall make reasonable efforts to provide transportation to the tests.

If the officer failes to follow the procedures set forth under Kentucky's Implied Consent laws, then any results the officer thereafter obtains may be suppressed.

Person's who believe their Kentucky Implied Consent rights have been violated should contact a Kentucky DUI attorney.

As a Kentucky criminal defense lawyer, I am occasionally asked how I can represent a defendant who must be guilty because they were arrested by the police. I note that to be an effective criminal defense lawyer I take the viewpoints that my client is innocent, that the police make errors, that the police have a tendency of overcharging the defendant, that evidence may be wrong, that witnesses err in their recall or that they may provide untrustworthy testimony, and more.

This response occasionally leads to the next question, how can I represent someone who I must know is guilty? Well, I usually state that I don’t know that my client is guilty. I go on to explain that as part of my defense strategy, as a rule, I avoid asking my client questions which elicit answers wherein they state they are guilty of the crime(s) charged: all I want to know are the facts and the evidence which the officers and the prosecutors collected from my client so I can plan a suitable and aggressive defense.

I further explain that at least one United States Supreme Court Justice commented on the role of law enforcement, the role of the criminal defense attorney, and the strategies used by criminal defense attorneys. In commenting on the role of law enforcement officers and the defense attorneys, United States Supreme Court Justice White stated:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth. United States vs. Wade, 388 U.S. 218, 256-259 (1967).

For example, on May 13, 2010, I watched TNA wrestling wherein the police arrested the wrestler called "the monster" Abyss. At the beginning of the show, the facts presented to the viewing audience indicated that Abyss had assaulted Chelsea - a model who acts as a valet for the wrestler Ric Flair. The accused, Abyss, claimed innocence. Throughout the program the viewers were fed pieces of information about the assault. However, it was not until the end of the program and after the arrest of Abyss that the viewers were presented with "hidden" camera video evidence showing how another wrestler and Chelsea framed Abyss by planned the assault, making false statements regarding the assault, and how they falsified the evidence of the assault - in this case the ripped dress, water, and tears. While the viewing audience may have believed that Abyss was guilty of the assault, but I would not have based on how I represent my clients.

Observing driver behavior from a distance and attributing the behavior to the driver and not to the road conditions (i.e.: swerving to avoid potholes or animals in the roadway)

Assuming that the odor of alcohol means a person consumed alcohol and is intoxicated, when in fact the odor may be due to other causes (i.e.: mouthwash, denture solutions, alcoholic drink which was spilled on the driver's clothes, etc.)

Failing
to properly instruct the driver during the instructional phase of the SFST's.

Failing to properly instruct the driver during the administration of the SFST's.

Failing
to properly follow the sequence of the SFST as described in the National Highway Traffic Safety Administration (NHTSA) Manual or the Kentucky Department of Justice Center for Training (KDOJCT) Manual.

Administering
invalid field sobriety “tests” which are not supported by research studies.

Failing to properly administer the Portable Breath Test (PBT), causing a false positive result (i.e.: not following the law and waiting 20 minutes before administering the test) to support a probable cause for arrest. (Note: PBT results are not admissible in Kentucky courts.)

Not having the Intoxilizer 5000EN breath test within 2 hours of cessation of the vehicle operation.

The above list of police officer mistakes is only a partial list of mistakes made by officers. It applies to Kentucky DUI / DWI arrests. If any of the above mistakes exist in a Driving Under the Influence matter, then a good defense may exist to the DUI / DWI charges.

Phoenix Intoxilyzer Machines Failed on January 1, 2006 according to an article by Attorney Daniel Jaffe, Jaffe Law Firm. Many of the City of Phoenix's Intoxilyzer 5000 machines, manufactured by CMI, Inc., which are used to test a person's breath alcohol content in DUI cases failed. Apparently, the programmer of the machine's internal computer gave the machine a 100 year life span, starting in 1906. The machines failed because they did not know what to do at the beginning of the New Year.

The Intoxilyzer 5000 machines are also used in Kentucky. Defense lawyers in the states of Florida, Arizona, New Youa, and Nebraska have uncovered through discovery inconsistencies in the machines, but have been prevented by the courts and by CMI, Inc. from discovering whether the Intoxilyzer's software code contains errors which could produce erroneous results. CMI has refused to reveal the computer source code for its machine stating it was a trade secret. Before the Florida courts could rule on whether to suppress the alcohol breath test, the Florida Legislature amended 316.1932(1)(f)4 to restrict the information obtainable on the device from "full information" to only the "results of the test." The fact that some of Phoenix's Intoxilyzer 5000 machines failed on January 1, 2006 due to programming errors supports the theory that the machines may be flawed. Scientists subject all formal research to peer review and studies. Defendants in the majority of criminal matters are afforded their Due Process right to verify and contest evidence against them. Due Process requires the state to disclose to criminal defendants favorable evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Due Process also mandates that the state turn over evidence which also may be exculpatory in nature. Yet defendants charged with DUI claiming their innocence are frequently prevented from verifying the accuracy of the Intoxilyzer devices, in violation of their Due Process Rights. If the Intoxylizer devices were properly designed, properly programmed, and properly working, then why are CMI, Inc., the states, and the courts refusing to allow defendant's the right to check and contest the results?

BE SEEN, BE HEARD!

Place your comments on any of the posts on this site for other readers to view. It's simple, just click on the "comment" link below the post which you desire to leave a comment. Then type your comment. It will be reviewed, and if appropriate, published for all to read.

Stop the Addiction

NOTICES & DISCLAIMERS

Nothing on this site should be construed as creating an attorney-client relationship.

This weblog is published by Stephen Isaacs. It is an exercise in journalism, not legal advice

The posts to this blog are the intellectual property of Stephen Isaacs unless otherwise noted. However, you are authorized by license to make certain use of them for non-commercial re-publishing of blog posts, with credit to the original author, subject to the license terms herein.

The author is paid a fee for any item purchased on or thru this site, including legal research and E-books.